Failure to obtain consent for esophageal dilation

On May 6, a 79-year-old man came to a gastroenterologist for an evaluation of iron deficiency anemia. The patient’s chart included a history of solid food dysphagia, but the note from the May 6 office visit did not mention that history.

Physician action

The gastroenterologist recommended an esophagogastroduodenoscopy (EGD) and a colonoscopy. There was no mention in the office note of any discussion of the need for dilation.

According to the patient and his wife, when they came to the endoscopy center, the gastroenterologist recommended esophageal dilation “as it had not been done in a while.” The patient and his wife stated that they specifically declined esophageal dilation because the patient was not having much trouble eating if he ate slowly.

During the procedure, esophageal dilation with a 52 French dilator was attempted. The gastroenterologist met the usual resistance and the esophagus was examined. There was no trauma found. A 48 French dilator was used to complete the procedure.

Following the EGD, the patient reported chest pain with swallowing. He was discharged and told to go to the emergency department (ED) if his symptoms worsened.

The patient developed worsening pain and went to a local ED. He was diagnosed with an esophageal perforation and was transferred to a trauma hospital.

Due to the patient’s age and because the perforation was walled off, physicians treated him conservatively with antibiotics and ventilator support with thoracentesis for a pleural effusion. The patient spent 20 days in the hospital (of those, 10 were in the ICU).

Allegations

A lawsuit was filed against the gastroenterologist, alleging that the dilation procedure was unnecessary and unauthorized. This led to an extended hospitalization and complications for the patient.

Legal implications

Along with the testimony from the patient and his wife that they declined esophageal dilation, there was no documentation in the operative permit or the office note that the patient approved the dilation procedure. The endoscopy center permit did not mention esophageal dilation and did not outline the risks of the procedure. The permit only referred to an EGD and colonoscopy.

Two gastroenterologists reviewed this case for the defense. They were critical of the lack of consent for the dilation and also questioned whether the severity of the patient’s dysphasia warranted the risk of esophageal dilation.

Disposition

This case was settled on behalf of the gastroenterologist.

Risk management considerations

In this case, the physician moved forward with a procedure that the patient did not want and did not consent to. While the physician documented that he discussed esophageal dilation with the patient and that the patient — with his wife as a witness — declined the procedure, there was no indication in the record that the patient reversed his decision and gave informed consent.

In cases where a patient refuses treatment, document that the informed consent discussion occurred and that the patient understood what he or she was refusing and the potential consequences of refusing treatment. If attempting to educate the patient about the treatment, avoid any communications that could be interpreted as intimidating or coersive. Instead, focus on objective education.1

Even if this physician did not agree with the patient’s wishes, he was obligated by law to respect the patient’s decisions. Conditions where consent may not be necessary are in an emergency, life-saving scenario or if the patient is not mentally competent to consent to treatment.2

Document the patient’s decision, along with patient education in the medical record. Full, contemporaneous documentation provides a greater defense in the event of a claim.

In this case, there was nothing in the record that reflected the physician’s reasoning for contradicting the patient’s wishes and performing the dilation. Had the physician fully documented his reasoning, and had the reasons been compelling or life saving, this case may have been easier to defend.

These closed claim studies are based on an actual malpractice claims from TMLT. These cases illustrates how action or inaction on the part of physicians led to allegations of professional liability, and how risk management techniques may have either prevented the outcome or increased the physician’s defensibility. These studies have been modified to protect the privacy of the physicians and patients.

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